Complaint Filed with the FTA Against the OAC

In the latest chapter in the saga of the BART Oakland Airport Connector (OAC), Public Advocates has filed a formal complaint (PDF) with the Federal Transit Administration (FTA) on behalf of Urban Habitat, TransForm, and Genesis, claiming that BART has not fully met its obligations under Title VI of the Civil Rights Act. Those obligations require agencies seeking federal money for transit to document the discriminatory and environmental justice impacts of their proposals. The complaint argues that BART still has not yet satisfactorily done this for the latest incarnation of the OAC — a transit line with a $6 one-way fare that may be prohibitively high for low-income riders, and with no intermediate stations that would bring economic benefits to the Hegenberger corridor and nearby neighborhoods.

The idea of a Title VI complaint has been one component of the OAC discussion this past summer. Urban Habitat had previously raised this issue (PDF) at MTC, requesting that any funding be conditioned on completion of the required Title VI study. BART’s response to this request at first pointed to an environmental justice section of the Environmental Impact Report certified in 2002, and then later pointed (PDF) to the agency’s 2007 triennial Title VI report — a document that, according to the complaint, makes no reference at all to the Oakland Airport Connector, let alone the OAC’s potential impacts to low-income and minority residents.

For proposals that qualify as “significant system-wide service and fare changes and proposed improvements,” agencies seeking FTA financial assistance, in order to comply with Title VI, are required to prepare a study that documents the discriminatory impacts of those changes or improvements. Chapter V of FTA Circular 4702.1A allows agencies to use their own customized methods to assess these impacts. But that same section also supplies the FTA’s own scheme, which is rather comprehensive. In light of the high $6 fare BART has proposed for the OAC, the FTA’s focus on fare changes is especially pertinent here. In situations where fare changes are proposed, there should be analysis of whether those fare changes would encourage or discourage low-income and minority riders from using the service — as well as discussion of how the agency plans to “minimize, mitigate, or offset” any adverse effects that do occur.

For projects resulting in a “disproportionately high and adverse effect on minority and low-income riders,” FTA Circular 4702.1A states that there must be a showing “that the action meets a substantial need that is in the public interest and that alternatives would have more severe adverse effects than the preferred alternative.” BART may run into difficulty when confronting this language. A $6 fare for such a short transit trip is expensive — possibly more expensive than the fare one would pay to ride BART a much longer distance to the Coliseum Station, and a hefty addition indeed for employees who would use the route on a daily basis. The fare appears to be disproportionately adverse to minority and low-income riders; so BART would need to show not only that the OAC meets an important public interest, but also that alternatives to the OAC would be more adverse.

BART will also have difficulty showing this last point. TransForm’s RapidBART proposal, which is a more cost-effective enhanced bus, would cost a fraction of the OAC to build. And yet, it is a superior transit project — since its fare would be much less than $6 or even free, and it would include an intermediate stop, making it a useful transit option for airport employees and others who work along the Hegenberger corridor. The funding assembled for the OAC also includes a significant amount of regional monies, which, if redirected to local transit, might well result in greater overall benefit than the OAC, by enhancing service to transit-dependent communities and increasing ridership. The OAC has in essence become the project alternative that has the most adverse effect on low-income and minority riders. RapidBART is a less adverse alternative that would better fulfill the public interest, by freeing up money that could then be spread to other useful projects in Oakland or Alameda County.

The OAC is a proposed improvement within the meaning of Circular 4702.1A. If it’s determined that neither of the documents that BART has offered to date — the environmental justice section of the EIR, or the 2007 triennial report — is sufficient to cover the bases discussed in Circular 4702.1A, then BART may have a Title VI problem on its hands. Rectifying that problem would require BART to more closely analyze the impacts of the OAC (high fare, no intermediate stops, and all) to low-income and minority communities, costing BART precious time.

In a recent two-part post (part 1, part 2), we examined the criteria that the U.S. Department of Transportation will use to evaluate project submissions that request TIGER Discretionary Grants and TIFIA credit assistance. In that post, we made an initial assumption: namely, that the OAC would satisfy all relevant background federal laws, thereby permitting the federal government to disburse funds to the project. We made that assumption so that we could reach the ultimate question of how well the OAC would fare under the TIFIA program itself — concluding that the OAC’s match to those criteria, while by no means abysmal, was mixed.

However, if a project like the OAC is found to have violated background federal legislation, then it is not eligible to receive federal money, from the get-go — even if it were a perfect match in every other way for the TIFIA loan program. The federal legislation is, then, a threshold question: the first set of hoops to jump through. The complaint argues that BART, in its rush to push through the OAC in step with the rapid timeline mandated by the federal stimulus program, failed to comply with its obligations under Title VI of the Civil Rights Act (which is one of the threshold federal laws). A significant portion of the total funding for the OAC, including the proposed TIFIA loan, will be provided by the federal government. In order to receive federal money, agencies like BART must comply with relevant requirements in federal legislation, including Title VI. Failure to do so prevents the flow of federal money. In the case of the Oakland Airport Connector, that means additional delay and opening up a large funding gap that stands in the way of completing the project.

If the FTA accepts this complaint, it will strive to complete its investigation of the complaint within 180 days of accepting it.

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4 thoughts on “Complaint Filed with the FTA Against the OAC”

It is amazing that this project is still surviving. The more I read about it, the more I hate it. The saddest part is, despite how awful this project is, it will most likely get built – the momentum is there.

BART certainly wants to build it, but if the FTA finds that this complaint holds water, the delay will be an obstacle.

It’s also unfortunate that BART hasn’t really made a good faith attempt to seriously consider TransForm’s RapidBART proposal — not unlike the way in which the 2002 EIR constructed on purpose a “Quality Bus” alternative without intermediate stops, so that any alternative would immediately appear inferior to the AGT project. There was a very telling email that was quoted in the Public Advocates complaint (pp. 8-9):

TransForm obtained documents from BART under California’s freedom of information law, the Public Records Act; these documents included an e-mail dated May 8, 2009, in which Thomas Dunscombe, the OAC project manager, urged four separate BART consultants to provide any information “to put holes in” and “discredit this ‘paper’,” stating that “another delay from the [BART] Board and we are practically dead.”